Alea (Sort of) Jacta Est

alea jacta

The Need for Action

Unkrainegate is terrible. But, unlike many whose views would seem more worthy of consideration than my own, I don’t see it as inherently terribler than other things he has done. To take only one example: declaring a phony “emergency” to upend the Constitution by taking money appropriated for the military and using it to “build the wall.”

But I do take the point that it’s one thing to commit a major usurpation of power every other month or so, and another thing to spit on the Constitution several times a day.

I take the point that, as the velocity of constitutional usurpations began to accelerate, it became harder to justify inaction on impeachment.

Fiat Iustitia Pereat Mundus?

Action on impeachment will be accompanied by sententious rhetoric on the constitutional duty to act, no matter what the political consequences. I don’t buy it. There is no higher ethical duty than getting Trump out of office—and replacing him with someone qualified for the job.

That said, one may reasonably argue that an equally compelling duty—maybe not a higher duty, but an equally important obligation—is to do what we can to ensure that something is left of American democracy by the time 2021 rolls around.

The Impeachment Process as a Vehicle for Discovery of the Facts

A reasonable interpretation of the case law precedents tells us that—impeachment or no impeachment—Trump’s stonewalling of congressional oversight is illegal, and the courts should not condone it. (I actually spent some days reading the leading cases, and reported the results here.)

Nonetheless, the legal case in support of congressional fact-finding in aid of an impeachment inquiry is materially stronger than in the case of conventional oversight investigations. Ordinary congressional oversight of the executive branch is an implied power of Congress. Impeachment is a specifically enumerated power. In considering impeachment, the House functions similarly to a grand jury, and has similarly broad powers to compel the testimony of witnesses and the disclosure of documents.

If there are any pro-Trump federal judges or Supreme Court justices that choose to ignore this part of the Constitution, then they can do so. But only with very considerable awkwardness and embarrassment.

The Impeachment Process as a Vehicle to Deter New Usurpations

And so, in short, opening an impeachment inquiry may act as a deterrent to future Trump attempts to usurp powers he does not have and to trample on the legal rules and norms that define American democracy.